State v. Dilallo
367 Or. 340
Or.2020Background:
- Defendant (Dilallo) was tried in 2018 on methamphetamine delivery and conspiracy; the jury was instructed under Oregon law that a verdict could be rendered by ten or more jurors (nonunanimous) and defendant did not object.
- The 12-person jury returned guilty verdicts; the record does not show whether the verdicts were unanimous, and no party requested a formal jury poll.
- Defendant appealed after the U.S. Supreme Court decided Ramos v. Louisiana (recognizing a unanimity requirement under the Sixth Amendment) and sought plain-error review of the unpreserved jury-instruction error.
- This Court, following its contemporaneous decision in State v. Flores Ramos, assumed the instruction was plainly erroneous but considered whether to exercise its discretion to review the unpreserved error.
- The Court concluded the absence of a jury poll left the record undeveloped about unanimity, preservation purposes were not satisfied, and therefore declined to exercise plain-error review.
- The Court affirmed the Court of Appeals and the circuit court judgment.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dilallo) | Held |
|---|---|---|---|
| Whether appellate court should exercise discretion to review unpreserved nonunanimous-instruction error (plain error) | Decline review; preservation promotes record development and fairness, and the record here lacks a jury poll so preservation purposes were not served | Ask court to exercise plain-error review under ORAP 5.45(1) because Ramos made instruction unlawful | Assumed error was plain but declined to exercise discretion to review because lack of jury poll left the record undeveloped and preservation purposes unmet; conviction affirmed |
| Whether a jury instruction permitting nonunanimous guilty verdicts is structural error or subject to harmless-error analysis | Not structural; harmlessness can be established (e.g., by a jury poll showing unanimity) | Structural error that requires automatic reversal | Followed Flores Ramos: not structural; unanimity shown by poll can render error harmless |
| Effect of absent jury poll and who bears burden on harmlessness | State bears Chapman harmlessness burden on review, but defendant’s failure to object and to request a poll means the record is incomplete and weighs against plain-error review | State should have requested poll; absence of poll should not bar review because harmlessness is State’s burden | Even if Chapman burden would apply on review, defendant’s failure to preserve and develop the record (no poll) militates against discretionary review; responsibility for the undeveloped record is attributable to defendant |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (Supreme Court held Sixth Amendment requires unanimous jury verdicts for serious offenses)
- State v. Flores Ramos, 478 P.3d 515 (Or. 2020) (Oregon court: nonunanimous-instruction error is not structural; a jury poll showing unanimity can make the error harmless)
- State v. Ulery, 464 P.3d 1123 (Or. 2020) (explaining when reviewing unpreserved nonunanimous-verdict error may be appropriate where the record shows nonunanimity)
- Ailes v. Portland Meadows, Inc., 823 P.2d 956 (Or. 1991) (factors for exercising discretion to review unpreserved error)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (standard for harmlessness of constitutional error)
- Peeples v. Lampert, 191 P.3d 637 (Or. 2008) (preservation fosters record development and fairness)
- Brooks v. Gladden, 358 P.2d 1055 (Or. 1961) (a party has an absolute right to request that the jury be polled)